Thursday, January 8, 2015

Pressure mounts on EPO president and administrative council over suspension of patent judge

About a month ago, the Administrative Council of the European Patent Organisation, the international body running the European Patent Office, expressed "concern at an incident unique in the history of [the] EPO" without saying clearly whether this related to the controversial decision by EPO president Battistelli to "suspend" a member of a board of appeal (a judge in all but name) for disciplinary reasons or whatever the suspended judge might have done. I believe that this ambiguity was intended because the Administrative Council needs to keep all options open, as it may ultimately have to oust the president over this scandal. However, I learned later that EPO staff was told the Administrative Council took issue with the alleged misconduct of the suspended judge. The Administrative Council plays a key role in the "reign of terror" that tries to discourage EPO staff, including judges, from fighting for basic human rights and one of the most fundamental values of the civilized world: judicial independence.

If the Administrative Council of the EPO didn't believe that it can get away with things that other political bodies couldn't even dream of committing, the EPO would already have a new president (though, as I said more than once, the real issue here is a structural one) and it would also be unthinkable in other public organizations that a vice president faced with multiple criminal charges (also see this "special report" on criminal charges) could stay in office for this long. All of this shows that something is completely wrong with the Administrative Council itself. Instead of exercising oversight, that body is largely responsible for the banana republic that the EPO has become. Seriously, there is no way that, for example, someone could continue as a vice president of a national antitrust authority, national patent office, or a central bank--except in the Third World--under these circumstances. While everyone is innocent until proven guilty in court (and it's possible that Mr. Topic never committed any wrongdoing that can be proven), a certain amount of smoke is equivalent to fire in a political context. Except, of course, if the decision makers feel they are not going to be held accountable.

According to French financial daily Les Echos, the suspended EPO judge's alleged wrongdoing relates to whatever he may have said about Mr. Topic, viewed by the EPO president as a "defamation campaign." I don't know what exactly the suspended judge said, but this looks like someone merely exercising his freedom of speech. The IPKat blog published a letter from the Intellectual Property Judges' Association (IPJA) to the Administrative Council, and the letter had "near unanimous support" from the IPJA's membership, which means top-notch patent judges from 11 European countries, without any objection or reservation. That letter says about the suspended judge's alleged misconduct: "It is not, as far as we know, suggested that the Member has committed any criminal offence."

The judges call for political action:

"The present events seriously threaten the judicial independence of the Boards of Appeal and by doing that call in question the guarantee of an independent and impartial review of the European Office's decisions by a judicial body. Not tolerating that should be the common interest of all Member States of the European Patent Organisation."

Having watched various political scandals over the years, I consider it a rule of thumb that an affair that results in statements and actions even during the Holiday Season, and that continues with undiminished force after the Holiday Season, tends to result in someone's resignation or ousting. Smaller issues go away and are not carried over into the new year. But the really big issues do survive the Holiday Season.

Even on December 29, at a time when few people are at work, there was a very significant development. EPLAW, the European Patent Lawyers Association, wrote a letter to the members of the Administrative Council expressing concern over judicial independence at the EPO. My favorite part is the seventh paragraph:

EPLAW is of the opinion that [...] judicial independence is guaranteed only when the power to suspend or to remove a judge is with his peers, and not with an executive or administrative body. In this respect Article 11(4) EPC -- which provides the Administrative Council with the power to exercise disciplinary authority over the members of the [boards of appeal] -- falls short.

In the final paragraph, EPLAW therefore "urges the Council to use this opportunity to propose an amendment to Article 11 EPC and in any event to critically review the Guidelines for Investigation [the basis on which the suspension happened] so as to avoid any further concern with respect to the principle of judicial independence at the EPO."

Thanks to the IPKat blog I've become aware of an official response by the UK Government to a member of parliament (liberal democrat Dr. Julian Huppert, from Cambridge) who asked a question about what measures would be taken to ensure judicial independence at the EPO. The answer suggests that the UK government and possibly some other governments do see a need for some improvement:

Officials in the UK Intellectual Property Office are closely and actively involved in discussions relating to the Boards of Appeal of the European Patent Office (EPO), including the Enlarged Board. It is the UK Government position that the Boards of Appeal should be independent of the executive of the EPO, and be seen to be so. This view is shared by other EPO member states and we expect proposals to make this clearer to be considered by the Administrative Council, the Office's supervisory body, in March 2015.

Whether the proposed reforms will go far enough, and whether they will be implemented at all, remains to be seen. I felt last month that there was a crack in the shell, and the UK government's response reaffirms this belief. Let's hope for the best.

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About Me

Florian Mueller used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.